There are times that I think we're not speaking the same language, and this is one of them. So, let me try to respond in plain language to Adam's question:
1.) Supporters of 4900 favor an exemption from the campaign finance laws for bloggers. That is WHY we support that bill: it achieves that without undoing other parts of BCRA. We think Bloggers should be treated DIFFERENTLY from national parties, candidates, and political committees, all of which have to use hard money (limited individual contributions) for their federal election speech.
2.)Opponents of 1606 do NOT favor exempting state parties from the requirements of McCain Feingold. Limits on state party expenditures of soft money are an important component of that law, and serve to prevent the obvious end run of state parties raising unlimited soft money to spend of communications for federal candidates. 1606 exempts state parties from the BCRA hard money system for their Internet communications. WHY? What does that have to do with protecting bloggers? I have YET to see a public defense of this central provision of 1606 on this ListServe--thus John Morris's comments about the hidden motivation of authors of 1606.
Trevor Potter
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Bonin, Adam C.
Sent: Fri 3/17/2006 8:34 PM
To: Bauer, Bob (Perkins Coie); tmann@brookings.edu; BSmith@law.capital.edu; election-law@majordomo.lls.edu
Cc:
Subject: RE: "CDT Responds to Markos"
As a member of Generation X, Bob, I feel neither highs nor lows. It's all about the same.
My problem with the "debate" is a simple one: there is no actual debate, no exchange of ideas and contentions. From among Those Who Support HR 4900, only CDT's John Morris has been willing to engage its doubters both publicly and privately. Others have chosen to speak through press releases and soundbites online, and it's a shame. We might actually be able to solve this thing if everyone could figure out what specifically scares Those Who Support HR 4900 so much.
So let's get away from the camps, from name-calling and from platitudes: what *is* the problem -- or, what *could be* the problem with sites that aren't owned, controlled by or subsidized by candidates, parties and PACs?
--Adam
--------------------------------------------------------
Notice: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.
--------------------------------------------------------
Notice: This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any attorney/client or other privilege.
--------------------------------------------------------
From: owner-election-law_gl@majordomo.lls.edu on behalf of Bauer, Bob (Perkins Coie)
Sent: Fri 3/17/2006 6:39 PM
To: tmann@brookings.edu; BSmith@law.capital.edu; election-law@majordomo.lls.edu
Subject: Re: "CDT Responds to Markos"
In truth, Tom, I did not intend to comunicate contempt through the references to the "reform community". Differences within that community may well be found: I imagine they would be. On issue after issue, however,the activist organizations--the one adopting specific posiitions on legislation or regulation--seem very united. Quite often a number will sign on to the same positions. That certainly seemd true in the run-up to the enactment of BCRA. But perhaps I overstate the case.
I am alll for civil debate. So this is my request: that those arguing for specific reforms not "caricature" their adversaries' arguments as shifty rationaliztions of corrupt practice. Anyone interested in examples may reply with that request.
Proponents of various regulatory measures take full advantage of one of their principal assets, the highly positive ring, to the ears of many, of the word "reform", which turns their critics into scabrous" opponents of reform". Be sensitive to that. We also have feellings.
Civilly
Bob.
IMPORTANT TAX INFORMATION: This communication is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of l986, as amended.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: Smith, Brad; election-law
Sent: Fri Mar 17 16:56:55 2006
Subject: RE: "CDT Responds to Markos"
A modest request to Brad Smith and other members of the list serve. Your views of the "so-called reform community" are well known to all members of this list serve. Some of us share those views, others do not. But in the spirit of civil discussion and debate, we would all benefit if you could refrain from repeating the same characterization that drips with contempt for those on the other side of the debate. By my count, Brad manages five such references in his latest offering below. Should those who disagree with Brad qualify all references to him as "someone who espouses the repeal or constitutional overturning of all campaign finance laws"? And since the "reform community" is characterized in unitary terms, should Brad and Bob Bauer also be treated as two peas in a pod, even though they have clear differences on some aspects of campaign finance law? Let's all, myself included, try to debate the merits of the particular issue under discussion and not caricature those !
with whom we disagree.
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith, Brad
Sent: Friday, March 17, 2006 4:01 PM
To: election-law
Subject: RE: "CDT Responds to Markos"
I think that John Morris's heart and intentions are in the right place. CDT solicited a great deal of comment on their proposal from a wide variety of people in an effort to find consensus. Moreover, I think that CDT's intention in drafting what became H.R. 4900 was a good faith effort to extend broad protection to internet activity, and in many ways it is successful in that goal. It is certainly better than what the traditional "reform" community wants, filed comments for at the FEC, and sued for in Court, and in that sense it is a compromise. Additionally, it is true that it extends some protections to the internet that H.R. 1606 simply does not address, although it is not entirely clear that the so-called "reform" community agrees that H.R. 4900 extends those protections. (And there is no reason that H.R. 1606 could not have passed, and then CDT could have pursued those other issues.)
John is wrong, however, in writing that "Bob [Bauer] is holding you [Kos] and the entire blogging community hostage to further his anti-campaign finance goals." Quite the contrary, had John not allowed a desperate "reform" community the life preserver of H.R. 4900, it is very likely that H.R. 1606 would have passed the House yesterday. H.R. 4900 served to confuse the issue and give some pro-regulatory legislators cover for what would otherwise be a very unpopular position. So the real question is, which bill is superior?
I think that 1606 is superior to the CDT approach in two key ways. The first problem with H.R. 4900 is that it is not clean. Under 1606, the internet community can feel comfortable knowing that a great deal of its activity is simply off-limits to the regulators. This allows one to enter the debate with security. Under 4900, with its various thresholds, the internet community has to watch its back. Have the spending thresholds been passed? It is very easy for anyone to bring a complaint, and then it will often be a fact investigation as to what was actually done, and whether it was done within the law. And because it is more complicated, people will feel less comfortable about their legal rights.
The second problem with HR 4900 is that does not protect some sites at all. Why shouldn't a site be protected merely because it has become successful? The CDT's answer is that such a blog would fall under its press exemption. But as Bob Bauer points out, it is not at all clear that the so-called "reform" community thinks that. I cannot forget that during the FEC's still-pending internet rule-making, the "reform" community commented urging the FEC to adopt a standard for internet regulation that, when pressed at oral hearing, they admitted they thought was probably outside the FEC's power; and when pressed further, they would not agree not to sue the FEC if it adopted that standard of internet regulation that they were recommending.
There really has been no case made that the FEC rule, in effect for since McCain-Feingold became law, is a problem. We're through a cycle and a half, and the "reformers'" horror stories have not come true. So I prefer the simpler language of H.R. 1606, codifying that rule, to a new approach. Later legislation can address some of the other issues included in 4900.
I remain confident that one bill or the other will pass, so John's "hostage" comment remains out of place.
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio
________________________________
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Thursday, March 16, 2006 5:40 PM
To: election-law
Subject: Re: "CDT Responds to Markos"
UPDATE: And here <http://www.dailykos.com/comments/2006/3/15/222216/199/31?mode=alone;showrate=1#c31> is another posting, responding to Bob Bauer's criticisms.
Rick Hasen wrote:
"CDT Responds to Markos"
John Morris of CDT has posted this response <http://www.dailykos.com/comments/2006/3/15/16415/5712/46?mode=alone;showrate=1#c46> on the Kos website regarding the choice between, among other options, HR 1606 and HR 4900 (the CDT alternative). A snippet:
Let me address how DailyKos would be affected under HR 4900. I believe that DailyKos would be deemed to be news media (which HR 4900 would permit but HR 1606 does not address). So you and the blog would have no obligations under the rules. More generally, I believe that all or almost all blogs would be fully protected by HR 4900, either because they do not spend more than $5000 for advocacy, or because they are news media, or both.
Very interesting. If that's the intention, then perhaps the language of HR 4900 should be drafted to make this fact more self evident
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->
To ensure compliance with requirements imposed by the IRS,
we inform you that, unless specifically indicated otherwise,
any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and
cannot be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code, or (ii) promoting,
marketing, or recommending to another party any tax-related
matter addressed herein.
This message is for the use of the intended recipient only. It is
from a law firm and may contain information that is privileged and
confidential. If you are not the intended recipient any disclosure,
copying, future distribution, or use of this communication is
prohibited. If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
by fax advise us by telephone and delete/destroy the document.